United States District Court, N.D. Oklahoma
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE
the Court is Lawrence Mayes' 28 U.S.C. § 2241 habeas
corpus petition (Dkt. 1). Also before the Court is his motion
seeking an answer from Respondent (Dkt. 7). Mayes challenges
the execution of his state sentence, and in particular, the
denial of earned credits. Dkt. 1 at 6. For the reasons
discussed below, Mayes must show cause why the petition
should not be summarily dismissed for failure to raise a
was convicted of armed robbery after five or more felonies in
violation of Okla. Stat. tit. 21, § 801. See
Dkt. 1 at 37; Oklahoma County District Court Case No.
CF-2003-3169.The state court sentenced him to 45 years
imprisonment. Id. Mayes appealed, and on September
26, 2006, the Oklahoma Court of Criminal Appeals (OCCA)
reduced the sentence to 35 years. Id. at 39.
years later, Mayes filed a grievance alleging prison
officials wrongfully denied him earned credits. See
Dkt. 1 at 2, 21-23. Mayes argued, as he does here, that the
armed robbery statute (Okla. Stat. tit. 21, § 801)
entitles him to earn good-time credits after serving ten
years in prison. Id. Warden Dowling denied relief,
in part. Id. at 17. She explained that under
Oklahoma law, “offenders serving a sentence for [armed
robbery] … are eligible to earn credits during the
first 85% of the sentence; however, said credits will not be
applied towards the sentence until the offender has served
85% of said sentence.” Id. at 17. She assured
Mayes his earned credits would be applied to his sentence
once he reached the “85% date.” Id.
filed a “Motion for Judicial Review” in state
court in 2017. Id. at 29. He argued the Oklahoma
Department of Corrections (DOC) was revoking his earned
credits and refusing to adhere to Oklahoma law. Id.
at 29; Motion filed March 13, 2017 in Oklahoma County Case
No. CV-2017-522. The state court dismissed the action
because he failed to “identif[y] any disciplinary
proceeding for which he seeks review” under Okla. Stat.
tit. 57, § 564.1C. Dkt. 1 at 31. Mayes appealed, and the
OCCA affirmed the decision on May 21, 2018. Id. at
filed the § 2241 petition (Dkt. 1) on June 4, 2018. He
asserts the DOC is violating his due process rights by
refusing to deduct earned credits from his sentence pursuant
to the robbery statute, Okla. Stat. tit. 21, § 801.
See Dkt. 1 at 6. Thereafter, Mayes filed a Motion
for Show Cause Order (Dkt. 7), which seeks a responsive
pleading from the Warden.
petition is governed by Habeas Corpus Rule 4 and 28 U.S.C.
§ 2241. Habeas Corpus Rule 4 requires a sua
sponte review of habeas petitions. “If it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief … the judge must
dismiss the petition.” Habeas Corpus Rule 4. “If
the petition is not dismissed, the judge must order the
respondent to file an answer….” Id.
survive initial review under § 2241, a petitioner must
allege facts showing the execution of his state sentence
violates federal law. See 28 U.S.C. §
2241(c)(3) (relief is available where the petitioner
“is in custody in violation of the Constitution or laws
or treaties of the United States”); Yellowbear v.
Wyo. Att'y Gen., 525 F.3d 921, 924 (10th Cir. 2008)
(“Section ... 2241 is a vehicle for ... attacking the
execution of a sentence.”); Bradshaw v. Story,
86 F.3d 164, 166 (10th Cir. 1996) (“A petition under 28
U.S.C. § 2241 attacks the execution of a sentence rather
than its validity....”). Mayes contends the DOC and
Warden Dowling are violating federal law by refusing to award
earned credits under the Oklahoma armed robbery statute,
Okla. Stat. tit. 21, § 801. See Dkt. 1 at 6.
According to Mayes, the statute creates a federally
recognized liberty interest in earned credits, and the denial
of such credits violates his due process rights under the
Fourteenth Amendment. See Dkt. 7 at 1.
Fourteenth Amendment guarantees due process “when a
person is to be deprived of life, liberty, or
property.” Templeman v. Gunter, 16 F.3d 367,
369 (10th Cir. 1994). State statutes may give rise to a
federal liberty interest, and therefore a due process
violation, where the plain language places “substantive
limitations on official discretion.” Montero v.
Meyer, 13 F.3d 1444, 1448 (10th Cir. 1994) (quoting
Kentucky Dep't of Corrections v. Thompson, 490
U.S. 454, 461 (1989)). In the context of prison credits,
courts look to whether a state statute “makes awards of
earned time mandatory” or discretionary. Templeman
v. Gunter, 16 F.3d 370 (analyzing denial of earned
credits under § 2241). Cf Boutwell v. Keating,
399 F.3d 1203, 1213 (10th Cir. 2005) (recognizing that a
state statute may “create a liberty interest when the
statute's language and structure sufficiently limits the
discretion of a parole board.”).
Oklahoma armed robbery statute does not mandate an award of
earned credits. It merely prevents repeat offenders from
earning credits during the first ten years in prison:
Upon conviction [for armed robbery], any person guilty of
three separate and distinct felonies, in violation of this
section shall suffer punishment by imprisonment … for
a period of time of not less than ten (10) years ….
The sentence imposed upon such person shall not be reduced to
less than ten (10) calendar years, nor suspended, nor
shall any person be eligible for probation or parole or
receive any deduction from his sentence for good conduct
until he shall have served ten (10) calendar years of such
Okla. Stat. tit. 21, § 801 (emphasis added). Therefore,
the Respondents did not violate Mayes' due process rights